Information sheet for law practitioners
October 2016
Government Lawyers
The Uniform Law and Uniform Rules have applied
in Victoria and NSW since 1 July 2015. This
information sheet explains how the Uniform Law
applies to government lawyers.
Prohibition against unqualified
legal practice
Under the Uniform Law a person who ‘engages in legal
practice’ must generally be admitted to practice and have a
practising certificate.1 From 1 July 2015, this requirement also
applies to many government lawyers in NSW and Victoria.2
•• The Uniform Law makes clear that engaging in
legal practice does not include developing or
commenting policy.3
•• People engaging in legal practice under the authority
of the Commonwealth or local law do not need a
practising certificate.4
The penalty for breaching the prohibition against unqualified
legal practice is 250 penalty units or imprisonment for two
years or both.5
Definition of government lawyer and
government authority
Under the Uniform Law, a government lawyer is defined as a
person who engages in legal practice only as:
•• an officer or employee of a government authority;
•• a statutory officer holder of the Commonwealth or an
Australian jurisdiction; or
•• another category specified in the Uniform Rules.6
A government authority includes a Minister, government
department or public authority.7
For the purpose of the transitional arrangements, NSW
defines ‘government lawyer’ as a government lawyer with
official functions in NSW, in the Commonwealth or in any
other jurisdiction.8 The NSW regulations also clarify that legal
practice engaged in as a statutory Crown law officer is legal
practice as a barrister.
This applies to government lawyers, such as the Solicitor
General, Crown Advocate, or counsel assisting those
officials, parliamentary counsel, a Crown prosecutor, and
public defender.9
Limited exemptions
In both Victoria and NSW, a person employed as a
government lawyer any time in the twelve months prior
to 1 July 2015 does not need to seek admission or hold
a practising certificate to engage in legal practice as a
government lawyer.10 A person in this category may still
choose to become admitted and apply for an Australian
practising certificate.11 This exemption does not apply to
persons employed in the future as government lawyers,
subject to the following transitional arrangements.
Admitted to practice – transition
In NSW, from 30 June 2017, a person employed as a
government lawyer who is admitted to practice will need to
hold a practising certificate.12
In Victoria, from 1 October 2015, a person employed as a
government lawyer who is admitted to practice must generally
hold a practising certificate.13
Not admitted to practice – transition
In NSW, there is a transitional period for those who are not
admitted and commence work as a government lawyer after
1 July 2015. In this case, government lawyers have three
years, until 30 June 2018, to gain admission and obtain a
practising certificate.14
In Victoria, a government lawyer in this situation will
generally need to hold a practising certificate to engage
in legal practice. This arrangement has applied from
1 October 2015.15
Level 40, MLC Centre, 19 Martin Place, Sydney NSW 2000
PO Box H326, Australia Square NSW 1215
T +61 8293 5900 F +61 2 8293 5959 E [email protected]
legalservicescouncil.org.au
This document is for general information purposes only | October 2016
LEGAL PROFESSION UNIFORM LAW | TOWARDS UNIFORM REGULATION OF THE AUSTRALIAN LEGAL PROFESSION
Government Lawyers
Giving notice of reliance on the exemption
In NSW, government lawyers practising under an exemption
must notify the appropriate body:
•• Not admitted: Legal Professional Admission Board within 12 months of engaging in legal practice pursuant to
the exemption.16
•• Admitted: Bar Council or Law Society Council (NSW) –
within six months of engaging in legal practice pursuant
to the exemption.
An exempt government lawyer, namely, a lawyer who was not
admitted on 1 July 2015 and was a government lawyer at any
time within 12 months before 1 July 2015, is not required to
notify the Legal Professional Admission Board.17
Supervised legal practice
A government lawyer granted a practising certificate will be
required to engage in a period of supervised legal practice.18
In NSW, any period of legal practice before 1 July 2015
(whether supervised or not) will be counted towards the
statutory period of supervised legal practice. The deeming
provision also covers any legal practice engaged in pursuant
to a transitional provision.19
Private, government and corporate
legal practice
Until an Australian practising certificate is renewed, a person
whose practising certificate authorises them to practice
only as:
•• an employee of a law practice, may also work as a
corporate or government legal practitioner;22
•• a government legal practitioner, may also work as a
corporate legal practitioner; and
•• a corporate legal practitioner may also work as a
government lawyer.23
This will assist lawyers in the private sector to move to
government or corporate legal practice. It will also assist
lawyers to move between government and corporate
legal practice without having to immediately vary their
practising certificate.
Pro bono work
An Australian legal practitioner may engage in legal practice
as a volunteer at a community legal service or otherwise on a
pro bono basis on any ‘type’ of practising certificate.24
For the purpose of these arrangements, legal practice is not
restricted to legal practice as a government lawyer.
A government lawyer who is admitted but does not hold a
practising certificate may apply for a practising certificate that
authorises legal practice as a volunteer at a community legal
service and otherwise on a pro bono basis only.25 To provide
such services the person must be covered by an approved
professional indemnity insurance policy.26
Applying for a practising certificate
Uniform Law and Uniform Rules
Practising certificates may authorise the holder to engage in
legal practice in one or more of the following categories:
A government lawyer is bound by the Uniform Law and
Uniform Rules, including Legal Practice Rules, Legal
Profession Conduct Rules and Continuing Professional
Development Rules.
In Victoria, any period of legal practice before 1 October
2015 (whether supervised or not) will be counted toward the
statutory period.20
•• principal or employee of a law practice;
•• corporate legal practitioner;
•• government legal practitioner;
This means that government lawyers are:
•• barrister only; or
•• subject to the complaints mechanisms of the local
jurisdiction;27 and
•• both as a volunteer at a community legal service and
otherwise on a pro bono basis only.21
•• must complete 10 continuing professional development
points per year.28
Level 40, MLC Centre, 19 Martin Place, Sydney NSW 2000
PO Box H326, Australia Square NSW 1215
T +61 8293 5900 F +61 2 8293 5959 E [email protected]
legalservicescouncil.org.au
This document is for general information purposes only | October 2016
LEGAL PROFESSION UNIFORM LAW | TOWARDS UNIFORM REGULATION OF THE AUSTRALIAN LEGAL PROFESSION
Government Lawyers
Fidelity Fund and Professional Indemnity
Insurance (PII)
1
2
3
Government lawyers/legal practitioners are not required to
make contributions to a fidelity fund or hold or be covered
by PII unless it is needed to cover volunteer work at a
community legal service or other pro bono work.29
4
The exemption does not affect the requirement for an
Australian legal practitioner (including a government lawyer)
to hold a practising certificate to engage in legal practice as
a principal, and hold or be covered by PII when practising on
their own account.30
Exemptions
An individual who is engaged in legal practice under
the authority of the law of the Commonwealth or
otherwise authorised under a law of NSW or Victoria
(other than the Uniform Law) is considered to be
a ‘qualified entity’ for the purposes of the Uniform
Law. For example, a government lawyer employed
by the Australian Government Solicitor may practice
as a solicitor or barrister in any court pursuant to the
Judiciary Act 1903 (Cth).31
The Uniform Rules also exempt persons acting in
an official capacity undertaking certain work. Some
examples are:
•• the drawing of instruments (but not parliamentary/
legislative counsel and legislative drafters);32
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
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25
26
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32
33
34
Legal Profession Uniform Law, s 10(1)
Above, note 1 s 56
Above, note 1 s 6, this exclusion also applies to policy work conducted outside of
government
In these circumstances the person is defined as a ‘qualified entity’ under the Uniform
Law, s 6
Above, note 1 s 10(1)
Above, note 1 s 6
Above, note 1 s 6
Clause17, Legal Profession Uniform Law Application Regulation 2015 (NSW)
Above, note 8 cl 23(1),(2)
Legal Profession Application Act (Vic) (2014), s 169(1)(2)(a)(b); above, note 8 cl 19(1)(a)
Above, note 8 cl 20
Above, note 8 cl 19(1)(c)
Clause 6(1)(a)(b),(2), Legal Profession Uniform Law Application (Savings and
Transitional) Regulation 2015 (Vic)
Above, note 8 cl 19(1)(b)
Above, note 12 cl 6(1)(b),(2)
Above, note 8 cl 21(2)(3)
Above, note 8 cl 21(1)(7)
Above, note 1 s 49
Above, note 8 cl 22(1)(2)
Above, note 12 cl 7 (a)(b)
Above, note 1 s 47
Above, note 1 s 47(4)(a)
Above, note 1 s 47(4)(a)(b)(c)
Above, note 1 s 47(5)
Above, note 1 s 47(1)(c)
Above, note 1 s 211, Legal Profession Uniform General Rules, r 82(2)(b)
Above, note 1 s 263(4) Chapter 5 Consumer Matters, does not apply to the executive or
administrative functions under legislation of a government lawyer who is not required to
hold a practising certificate
Continuing Professional Development Rules (Solicitors) 2015, r 6; Continuing
Professional Development Rules (Barristers) 2015, r 8
Above, note 1 s 225(4)(b), above, note 25v r 82 (1)(a),(2)(b)
Above, note 26 r 82(2)(a)
Definition of qualified entity, above, note 1 s 6; Judiciary Act 1903 (Cth), s 55E(2)
Above, note 26 r 10(1) (c)
Above, note 26 r 10(1)(d)
Above, note 26 r 10(1)(e) – this applies to a public trustee (however named) and any
officer, employee or staff of the public trustee or company that performs the functions of
the public trustee itself or on behalf of the government of the jurisdiction
•• appearing in court or tribunal as authorised by
jurisdictional or Commonwealth law;33
•• preparing wills or related services or work related
or involving the administration of trusts, estates
of living and deceased persons, or affairs of
living persons.34
For more information
www.legalservicescouncil.org.au
Level 40, MLC Centre, 19 Martin Place, Sydney NSW 2000
PO Box H326, Australia Square NSW 1215
T +61 8293 5900 F +61 2 8293 5959 E [email protected]
legalservicescouncil.org.au
This document is for general information purposes only | October 2016
LEGAL PROFESSION UNIFORM LAW | TOWARDS UNIFORM REGULATION OF THE AUSTRALIAN LEGAL PROFESSION